Larios v. Attorney Gen. U.S.

• Decision Date: 14 October 2020
• Docket Number: No. 19-2594,19-2594
• Parties: Lazaro Javier LARIOS, Petitioner v. ATTORNEY GENERAL UNITED STATES of America, Respondent
• Court: U.S. Court of Appeals — Third Circuit

978 F.3d 62

Lazaro Javier LARIOS, Petitioner

v.ATTORNEY GENERAL UNITED STATES of America, Respondent

No. 19-2594

United States Court of Appeals, Third Circuit.

Argued March 4, 2020

Opinion Filed: October 14, 2020

Regis Fernandez [Argued], 7 Federal Square, Newark, NJ 07102, Attorney for Petitioner

Raya Jarawan [Argued], United States Department of Justice, Office of Immigration Litigation, P.O. Box 878, Ben Franklin Station, Washington, DC 20044, Anthony C. Payne, United States Department of Justice, Office of Immigration Litigation, P.O. Box 878, Ben Franklin Station, Washington, DC 20044, Attorneys for Respondent

Before: SMITH, Chief Judge, HARDIMAN, and KRAUSE, Circuit Judges

OPINION OF THE COURT

KRAUSE, Circuit Judge.

To determine if a noncitizen convicted of a state offense is subject to immigration consequences prescribed in federal law, the Supreme Court has instructed courts to compare whether the elements of the state offense define a crime that is the same as or narrower than the generic federal offense. See Descamps v. United States , 570 U.S. 254, 257, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013). This analysis, which has come to be known as the "categorical approach," sounds simple in theory but has proven difficult (and often vexing) in practice, necessitating a "modified categorical approach" and generating an evolving jurisprudence around when the categorical or modified categorical approach applies.

That difficulty is borne out in the convoluted history of this case. Here, in what is now Lazaro Javier Larios's third petition for review from prior reversals, the Board of Immigration Appeals (BIA) applied the categorical approach and held Larios ineligible for cancellation of removal under 8 U.S.C. § 1229b(b)(1) for having been convicted of "a crime involving moral turpitude." 8 U.S.C. § 1182(a)(2)(A)(i)(I). Because we conclude the crime at issue—New Jersey's terroristic-threats statute, N.J. Stat. Ann. § 2C:12-3(a) —should have been analyzed under the modified categorical approach, and, under that approach, the particular offense of which Larios was convicted is not a crime involving moral turpitude, we will grant the petition for review.

I. Factual and Procedural History

For nonpermanent residents who meet the eligibility criteria outlined in 8 U.S.C. § 1229b(b)(1), cancellation of removal is a discretionary form of relief that "allows [them] to remain in the United States despite being found removable." Barton v. Barr , ––– U.S. ––––, 140 S. Ct. 1442, 1445, 206 L.Ed.2d 682 (2020). But those who have "been convicted of an offense under section 1182(a)(2)," 8 U.S.C. § 1229b(b)(1)(C) —which includes "a crime involving moral turpitude" (CIMT), id. § 1182(a)(2)(A)(i)(I) —are ineligible for cancellation of removal.

Larios, an El Salvadoran national, entered the country without inspection in 1986. In 1998, Larios was approached by someone outside of a bar and, allegedly because he believed he would be robbed, pulled out a knife and caused the person to flee. Larios pleaded guilty to "threaten[ing] to commit any crime of violence with the purpose to terrorize another ... or in reckless disregard of the risk of causing such terror" in violation of N.J. Stat. Ann. § 2C:12-3(a). Some years later in 2006, he was served a Notice to Appear and entered removal proceedings. Since then, Larios has been seeking cancellation of removal.

The IJ and the BIA in 2008 determined that Larios's crime of conviction was a categorical match for a CIMT, rendering him ineligible for cancellation of removal.

In 2008, Larios filed his first of three petitions for review to this Court and argued that his crime could not qualify as a CIMT because, under the categorical approach, the elements of a state statute must define an offense not broader than the federal statute, whereas here, "the least culpable conduct necessary to sustain a conviction under the [New Jersey] statute," Partyka v. Att'y Gen. , 417 F.3d 408, 411 (3d Cir. 2005) —a threat to commit "simple assault"—did not meet the criteria to qualify as "turpitudinous" under § 1182(a)(2)(A)(i)(I) and the relevant case law, Larios v. Att'y Gen. , 402 F. App'x 705, 708–09 (3d Cir. 2010). We agreed that, because it swept in simple assault, the statute encompassed both turpitudinous and non-turpitudinous conduct, and based on our understanding of the categorical approach at the time, we held the statute was divisible. See id. at 709. That understanding changed a few years later with Descamps v. United States , 570 U.S. 254, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), but our divisibility analysis then focused on whether a statute comprised both turpitudinous and non-turpitudinous conduct, rather than whether it comprised different, alternative elements (one or more of which may be turpitudinous). Regardless, the purpose of the modified categorical approach has always been to determine which portion of the statute formed the basis for the petitioner's conviction. Thus, we remanded for the agency to apply the modified categorical approach to determine whether Larios had been convicted of the turpitudinous or the non-turpitudinous part of the statute. See id.

On remand, however, the IJ declined to apply the modified categorical approach and instead concluded that the categorical approach applied after all. The IJ reasoned that simple assault, under New Jersey law, N.J. Stat. Ann. § 2C:1-4(b), was not a "crime" at all, only "a disorderly persons offense [or] ... a petty disorderly persons offense," id. § 2C:12-1(a). See A.R. 675–76 (citing State v. MacIlwraith , 344 N.J.Super. 544, 782 A.2d 964, 966 (App. Div. 2001) ). And because New Jersey's terroristic-threats statute covers only threats to "commit a[ ] crime of violence," N.J. Stat. Ann. § 2C:12-3(a) (emphasis added), the IJ explained, a threat to commit simple assault was not covered by that statute, excluding the only non-turpitudinous application and, hence, the need for the modified categorical approach.

Applying the categorical approach yet again, the IJ relied on BIA precedent that statutes criminalizing "the intentional transmission of threats of violence are categorically CIMTs," A.R. 676 (citing Matter of Ajami , 22 I. & N. Dec. 949, 952 (BIA 1999) ), and the New Jersey Model Jury Charge's description of a terroristic threat as one "convey[ing] menace or fear," id. (citing New Jersey Model Criminal Jury Charge, § 2C:12-3(a), at 2), to conclude that the statute covered only turpitudinous offenses and was therefore a categorical match with § 1182(a)(2)(A)(i)(I).

The BIA affirmed, summarizing the IJ's analysis but, for its own part, stating only that it agreed that the actus reus, simple assault, was not a "crime of violence" under New Jersey law. That explanation left unclear whether the BIA had compared the mens rea of the state offense—"purpose" or "reckless disregard," N.J. Stat. Ann. § 2C:12-3(a) —to the generic offense, and under that analysis, whether the New Jersey statute was still a categorical match for § 1182(a)(2)(A)(i)(I) ’s generic offense. So after Larios filed his second petition for review, we granted the Government's motion to remand "to allow the Board to clarify whether its analysis was properly limited to the ‘crime of violence’ element of the statute, or, alternatively, to allow the Board to consider the mental state element." A.R. 54.

This time on remand, the BIA held the mens rea element, too, was a categorical match, treating both purpose and reckless disregard as "an intentional or vicious state of mind," A.R. 5, and treating a threat with that mens rea as an "act committed with an appreciable level of consciousness or deliberation," id. at 4 (quoting Partyka , 417 F.3d at 414 ). So it again rejected Larios's cancellation-of-removal application.

We now consider Larios's third, timely filed petition for review.

II. Jurisdiction and Standard of Review

The BIA exercised jurisdiction under 8 C.F.R. §§ 1003.1(b)(3) and 1240.15, and we exercise jurisdiction over the question of law presented by this petition for review under 8 U.S.C. § 1252(a). Our review of that legal question is plenary. Moreno v. Att'y Gen. , 887 F.3d 160, 163 (3d Cir. 2018).

So long as its determination is "based on a permissible interpretation" of the immigration statute, we give deference to "the BIA's definition of moral turpitude, ... as well as the BIA's determination that a certain crime involves moral turpitude" in its published opinions. Mehboob v. Att'y Gen. , 549 F.3d 272, 275 (3d Cir. 2008) (citation omitted); see De Leon-Ochoa v. Att'y Gen. , 622 F.3d 341, 349 (3d Cir. 2010). We do not, however, defer to "the BIA's parsing of the elements of the underlying [state] crime," nor do we accord any deference to an opinion—like the one we review today—constituting an "unpublished, non-precedential decision issued by a single BIA member." Mahn v. Att'y Gen. , 767 F.3d 170, 173 (3d Cir. 2014).

III. Discussion

For Larios, the sticking point in terms of his eligibility for cancellation of removal is whether his conviction for making a terroristic threat under N.J. Stat. Ann. § 2C:12-3(a) is a CIMT. First, we explain why § 2C:12-3(a) should be analyzed under the modified categorical approach rather than the categorical approach, and, second, we apply the modified categorical approach to the particular alternative under which Larios was convicted: "threaten[ing] to commit any crime of violence with the purpose to terrorize another ... or in reckless disregard of the risk of causing such terror." N.J. Stat. Ann. § 2C:12-3(a).

A. The Modified Categorical Approach Applies Here

When a state conviction is subject to federal criminal or immigration consequences, we use the now-familiar categorical approach or modified categorial approach to determine whether a petitioner's crime of conviction matches the generic federal offense—here, whether N.J. Stat. Ann. § 2C:12-3(a) is a categorical match for § 1182(a)(2)(A)(i)(I) and thus qualifies as a CIMT.

In the...